2001 P Cr (PLP)

4. Statements of nine P.Ws. were recorded at the trial Muhammad Nawaz complainant appeared as P.W.4. He re‑narrated the facts given by him in the F.I.R. During cross‑examination he stated that he had not forbidden Allah Yar from visiting his house. He denied the suggestion that he had been taking money from Allah Yar. He denied the suggestion that his daughter Mst. Irshad Bibi had contracted marriage with Allah Yar of her free‑will. He denied the suggestion that he had promised to Allah Yar to marry Mst. Irshad Bibi with him but refused to do so on Allah Yar's failures to pay him Rs.20,

000. He also denied the suggestion that he had demanded Rs.50,000 from Allah Yar for withdrawing this case against him. The suggestion that he had lodged a false report was denied by him. .

5. Muhammad Yar who had seen the appellants boarding a bus, appeared as P.W.2 and narrated that fact. During cross‑examination he denied, the suggestion that he had made a false statement. He also denied the suggestion that Allah Yar and he had been proceeded against, each other under sections 107 and 151, Cr.P.C. by police of Police Station Saddar, Sargodha.

6. Noor Muhammad, A.S.‑I., who had investigated the case, arrested the accused, recovered Mst. Irshad Bibi and later arrested her also and got the challan submitted against the appellants appeared as P.W.5 and narrated the proceedings of the investigation. He denied the suggestion that he had made a false statement.

7. Lady Dr. Tahira Rehmat who had medically examined Mst. Irshad Bibi on 22‑3‑1993 appeared as P.W.6 and stated that after examination on 22‑3‑1993 and after receipt of positive report from the office of the Chemical Examiner, she had opined that intercourse had been committed with Mst. Irshad Bibi. The statements of the remaining witnesses are more or less of a formal nature.

8. The appellants during statements under section 342, Cr.P.C. denied the prosecution case and pleaded innocence. Mst. Irshad Bibi stated as follows in answer to question "why this case against you and the P.Ws. have deposed against you":‑‑ "I, have married with Allah Yar accused without the consent of my parents as they demanded Rs.50,000 from Allah Yar accused for this marriage. Due to this grudge a false case was registered against us. The P. Ws. are related to each other. We have a baby out of this wedlock. " Allah Yar, appellant, stated as follows in answer to the question "why this case against you and the P. Ws. have deposed against you":‑‑ "Mst. Irshad Bibi had married with me without the consent of her parents as they had demanded Rs.50,000 for this marriage. Due to this grudge a false case was registered against us. P.Ws. are related to each other. " Mst. Irshad Bibi produced in defence copy of the Nikahnama Exh.D.D. between her and Allah Yar according to which they had entered into marriage on 23‑9‑1992. She also produced copy of decree, dated 31‑10‑1993, Exh.D.E., by Judge, Family Court, Sargodha in the suit for restitution of conjugal rights filed by Allah Yar against her. Learned trial Judge vide the impugned judgment acquitted the appellants for the charge under section 16 of the said Ordinance. The plea taken by the appellants that they had married was also accepted by the learned trial Judge. However, the learned trial Judge convicted the appellants holding that they had been committing Zina after abduction till they had entered into marriage on 23‑9‑1992.

9. I have gone through the record with the assistance of the learned counsel for the appellants and considered the contentions of the learned counsel for the parties.

10. In this case learned trial Judge vide impugned judgment dismissed the charge by the prosecution, that Allah Yar had abducted Mst. Irshad Bibi. The learned trial Judge also accepted the plea advanced by the appellants that they had entered into marriage vide a regular Nikahnama and their marriage was declared valid by Judge, Family Court also. The finding of the trial Judge in para. 11 of the impugned judgment that "... there is no gainsaying the fact that the accused persons have completely failed to justify that from the night of 3/4‑8‑1992 till 23‑9‑1992 they have not been living in adultery..." is not correct adjudication of the issue of guilt before him. It is a widely known proposition that the prosecution has to prove its case. Of course the accused have also to prove the plea that they set up, to a reasonable extent. However, the total burden of prove of innocence 'cannot 1 be placed on their shoulders unless the prosecution brings reasonable evidence on record against the accused. In this case the prosecution had not produced any evidence that the appellants were living together from 3/4‑8‑1992 till 23‑9‑1992 as husband and wife and had been committing Zina. Nobody stated that he had seen them committing Zina. None appeared at the trial to state that he had seen them living together in one house or at one place. Muhammad Yar P.W.2, was the only person, who had stated that he had seen the appellants boarding a bus together. Except that statement A there is nothing on record to consider even that the appellants had lived together or mixed with each other from 3/4‑8‑1992 till 23‑9‑1992 i.e. about one month and twenty days. It was suggested on their behalf during the trial that Mst. Irshad Bibi had remained with her relatives alone before she had entered into marriage. The medical evidence in this case does not lend corroboration to the theory propounded by the learned trial Judge as Mst. Irshad Bibi stated that she was examined medically much after she had been living with her husband as wife and so whatever result was given by the lady doctor was due to the fact that she had been having intercourse with her husband.

11. For all the reasons noted above the impugned judgment is not maintainable. The appeal filed by the appellants is allowed. The appellants 8 are acquitted. They are in jail. They shall be released forthwith if not required in any other case. N.H.Q./47/FSC?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.